Forty years after the passage of the Fair Housing Act in 1968, the National Commission on Fair Housing and Equal Opportunity was convened to travel across the country to collect information and hear testimony about the nature and extent of illegal housing discrimination, its connection with government policy and practice, and its effect on our communities. The Commission held hearings in Chicago, Houston, Los Angeles, Boston, and Atlanta.

On December 9, 2008, at the National Press Club in Washington, DC, the Commission reported on its findings.

Appendix A: Emerging Fair Housing Legislative and Regulatory Issues

Witnesses before the Commission drew attention to a number of areas where legislative or regulatory changes may be needed to address confusion about the ways in which the Fair Housing Act and other laws apply. However, the Commission did not reach consensus on recommending action on any of these proposals. The following is information on the ideas presented at our hearings.

Amendment of the Communications Decency Act

The Fair Housing Act prohibits making, printing or publishing any statement, notice or advertisement that indicates a preference or limitation based on race, color, religion, national origin, sex, familial status or disability. [302] Historically, there is well-established precedent holding newspapers liable for violating Section 804(c) of the Act for running advertisements that include discriminatory statements or preferences.[303] There has also been an increase in the use of the internet age to advertise for apartment and room rentals, real estate sales and other transactions covered by the Fair Housing Act.

Litigation brought against internet providers such as craigslist alleging the publication of discriminatory advertisement has resulted in mixed outcomes because the provisions of the Communications Decency Act have been raised as a defense.[304] The advertisements in question have contained blatantly discriminatory language (such as "no minorities"), which if printed in a newspaper would violate the Fair Housing Act.[305] By holding that discriminatory advertising on the Internet is protected from liability, the courts have created an untenable anomaly.

Use of the internet can be a positive way to provide valuable information about housing choices and neighborhoods. A study by the National Association of Realtors in 2007 showed that 29 percent of homebuyers found their house on the Internet. Using the Internet in ways that do not violate the Act – such as marketing neighborhoods that are diverse– should be encouraged.[306]

Amendment to the Fair Housing Act to Provide Direct Enforcement for Failure to Affirmatively Further Fair Housing and a Claim for Damages

The Fair Housing Act requires that federal government agencies and the programs and activities that they fund be operated in a manner that affirmatively furthers fair housing. See 42 USC 3608(e).

"Federal courts have repeatedly held that §3608 reflects a Congressional desire to have HUD use its grant programs to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases....’ NAACP v. Sec’y of Housing and Urban Development, 817 F.2d 149, 155 (1st Cir. 1987). Or, as the Third Circuit previously put it, "[HUD cannot] remain blind to the very real effect that racial concentration has had in the development of urban blight...[and] must utilize some institutionalized method whereby, in considering site selection or type selection, it has before it the relevant racial and socio-economic information necessary for compliance with its duties under the 1964 and 1968 Civil Rights Acts." Shannon v. HUD, 436 F.2d 809, 821 (3d Cir. 1970)."[307]

Although plaintiffs have successfully brought numerous Section 3608 claims in federal court against HUD (using the Administrative Procedure Act) and against state and local housing agencies pursuant to the general civil rights statute, 42 U.S.C §1983, most courts have found no "direct" cause of action against HUD or HUD grantees under this provision, and based on recent decisions on the use of §1983 to enforce federal statutes, some courts are becoming reluctant to entertain a claim based on §3608 against state or local government entities.

More importantly, the Fair Housing Act contains no administrative procedure for HUD to accept a complaint based on Section 3608, leaving some victims of government discrimination without a remedy. In addition, because the Act does not include violation of Section 3608 as one of the provisions that the Department of Justice has authority to enforce, the federal government has no ability to enforce Section 3608 in court. Also, even in private actions brought in court, the deferential standards of review under the Administrative Procedure Act make it very difficult to prove liability against the federal government. Finally, because of sovereign immunity, even if they are successful in their injunctive relief claims, civil rights plaintiffs may not be able to recover damages from federal and state entities for violations of §3608.

An amendment to the Fair Housing Act – defining a discriminatory housing practice to include a violation of the affirmatively furthering provision – would provide several direct remedies including an administrative complaint, an express private right of action in federal or state court, and an authorization for action by the U.S. Department of Justice if the violation amounted to a pattern and practice of discrimination or a matter of general public importance.[308]

For such cases to result in a successful claim of damages against a federal or state agency, there must be an explicit waiver of sovereign immunity.[309] There is no explicit waiver of sovereign immunity in the Act. Holding HUD and other federal agencies directly accountable in damages for their acts of discrimination, including a failure to affirmatively further fair housing, would be a dramatic change in the law. Federal and state agencies own and operate housing; they currently can be sued under the Fair Housing Act for injunctive relief and attorneys’ fees, but not for damages. A waiver of sovereign immunity would place the government on the same footing as a private party that discriminates by requiring the wrongdoer to pay damages to compensate victims for the injuries they have suffered as a result of discrimination.

Amending the Act to provide for direct enforcement of the affirmatively furthering fair housing obligation and for damages payable by federal or state government is a strong remedy, but it is one that should be considered in light of the long history of federal agency complicity in housing discrimination.

Addition of a New Protected Class - Source of Income Discrimination - to the Fair Housing Act

In many housing markets, one of the key ways housing is provided to low-income tenants living on Social Security, disability retirement, income assistance, or other similar forms of income is through a housing subsidy, the most well known of which is the Housing Choice Voucher Program (also referred to as the Section 8 voucher program).[310] Because vouchers may be used anywhere in the country, they provide the opportunity for housing selection in areas that are not segregated by race, national origin, or other protected traits. Important public policy goals of expanded choice and opportunities for housing in non-impacted neighborhoods will be frustrated if landlords in mostly White and more affluent neighborhoods are free to discriminate against persons holding vouchers, not based on the amount of their income but on its source. Research supports the conclusion that landlords’ refusal to accept rental subsidies in more affluent, predominantly White suburban communities is a significant barrier to economic and racial integration.[311]

Discrimination against voucher holders simply because they are voucher holders and other forms of discrimination against otherwise qualified applicants simply because of the source of their income is illegal in a number of states and localities.[312] A September 2008 report by the Fair Housing Justice Center analyzing internet advertisements for housing in New York City found extensive evidence of discrimination based on source of income. One hundred sixty-one real estate companies were responsible for posting 363 advertisements for 412 units with discriminatory restrictions based on source of income. [313]

Two studies conducted by the Chicago Lawyers Committee for Better Housing based on testing to determine if homeseekers who were voucher holders experienced discrimination found that discrimination against voucher holders was widespread and that discrimination was more pronounced when the voucher holder was Black.[314]

Discrimination based on source of income can have a profound effect on the housing choices that are available to homeseekers including an effect of perpetuating neighborhoods that are racially and economically impacted. For that reason, a systematic examination of the need for an amendment to the Fair Housing Act to prohibit discrimination based on source of income is needed. Such an examination should include detailed consideration of the need for such a provision in federal law, the concerns of the multifamily housing industry about such a provision, and the role that this amendment could play in creating more diverse neighborhoods.

In addition to considering broader federal authority that would prohibit source of income discrimination in the private housing market, HUD and the Department of Justice should take immediate steps to enforce the existing rules protecting Section 8 voucher holders from discrimination in federally assisted housing, including the Low-Income Housing Tax Credit Program, the HOME program, the Mark-to-Market program, and multifamily properties purchased from HUD.[315]

To ensure compliance with these provisions, audit testing should be conducted by HUD (or through private FHIP agencies), and if enforcement authority is unclear, Congress should clarify that these existing non-discrimination provisions can be privately enforced by individuals, fair housing organizations, and HUD/DOJ.

HUD may want to consider funding testing on a larger scale to examine the nature and extent of discrimination based on source of income in localities around the country.

Clarification of Court Decisions

A reformed fair housing agency could consider developing clarifying regulations addressing the issues described below. Legislative changes should be proposed if such regulations do not resolve the issue or if the issue has been adversely decided by the Supreme Court.

Clarify that a failure to design and construct accessible housing as required by 42 USC 3604(f)(3)(c) is a continuing violation of the Fair Housing Act until the noncompliance has been corrected (correcting the incorrect interpretation provided by the Court in Garcia v. Brockway, 526 F.3d 456 (9th Cir. 2008).

Reject the reasoning that applies the Fair Housing Act only to discrimination in the acquisition of housing and instead allow current homeowners and renters to challenge discriminatory housing practices that affect the continued occupancy of their homes (correcting the decisions in Halprin v. The Prairie Single Family Homes of Dearborn Park Ass’n., 388 F.3d 32 (7th Cir. 2004); and Cox v. City of Dallas, 430 F.3d 734 (5th Cir. 2005)).

Reject the analysis that finds that discrimination in real estate-related transactions does not include the failure to make reasonable accommodations for people with disabilities (Gaona v. Town & Country Credit, 324 F.3d 1050, 1056 (8th Cir. 2003)).

Current Issues in Federal Enforcement

On November 13, 2000, HUD published a proposed regulation outlining the application of the Fair Housing Act to acts of sexual harassment in the housing context. However, HUD never issued final regulations. Sexual harassment in housing repeatedly has been the subject of complaints and litigation and court decisions have established the contours of the law.[316] The need for HUD regulations to establish HUD’s position with clarity was identified in a 1996 court decision. The Department of Justice has successfully litigated several such cases and firm administrative guidance should be provided to housing providers and enforcers about the application of the law to sexual harassment. A final regulation on sexual harassment under the Fair Housing Act is long overdue.

There is a strong need for updated guidance for those who work in fair housing enforcement to ensure that the law will be consistently applied. A reformed fair housing organization should develop a system to issue and distribute interpretive guidance on the provisions of the Fair Housing Act and related laws. This interpretative guidance should be publicly available and explain the meaning of court decisions and the policy decisions that have been made about application of the law. Ideally, this information will be made available through a website or other system that will organize and categorize information about fair housing enforcement and how the law will be applied.

The underlying premise for the recommended program changes discussed in this report is that the federal government is not providing sufficient choices for low-income families of color outside areas of minority concentration or areas with high levels of poverty. But even with stronger HUD guidelines and program oversight, there will be continuing pressures on the local level to continue the less controversial status quo approach in terms of siting new housing developments, distributing limited housing acquisition and rehabilitation funds, and marketing affordable housing units to families. To counter this continuing problem of geographic concentration and segregation in HUD and other federal housing programs, and to truly effectuate the principle of fair housing choice, the Inclusive Communities Project has proposed the adoption of an enforceable statutory right to choose non-segregated housing:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no applicant for or resident of federal assisted housing shall be required to accept a housing unit in a development or in a census tract in which his/her race/ethnicity predominates as a condition of receiving said federal low-income housing assistance, either as a temporary or permanent placement.

Sec. 2, And be it further enacted, That if an applicant/resident exercises his/her right under this provision then the administering agency shall, at the individual’s election, provide all assistance necessary for that individual to obtain a desegregated housing opportunity, including a housing voucher, and counseling and supportive services. This provision shall be enforceable by the individual applicant for or recipient of such assistance.[317]

A statutory change that empowers recipients of federally assisted housing to choose integration would fundamentally change the culture of federal housing programs and force agencies to seriously reexamine the choices they are providing to their clients.

[308] Testimony of Michael Allen (Boston), at 4, proposing that the definition of "discriminatory housing practice" provided in 42 U.S.C. § 3602 include "a failure to comply with the obligations of section 3608(e)(5)."

[309] Testimony of Scott Chang (Atlanta), at 7, proposing that 42 USC § 3613(c)(1) provide that "the United States and all states shall be liable for actual and punitive damages to the same extent as a private person."

Coinciding with the 40th anniversary of the passage of the Fair Housing Act in 1968, NFHA has partnered with the Lawyers' Committee for Civil Rights Under Law, NAACP Legal Defense & Educational Fund, and the Leadership Conference on Civil Rights Education Fund to create a national, bipartian fair housing commission to investigate the alarming state of U.S. housing in the wake of the subprime housing debacle.

On December 9, 2008, the commission released its findings and recommendations in this comprehensive report.